Authored By: Miyelani Forget Shivambu
University of Fort Hare
Facts of the Case
Ms. Modjadji Florah Mayelane married Mr. Hlengani Dyson Moyana in terms of Xitsonga customary law. After Mr. Moyana passed away, Ms. Ngwenyama asserted that she, too, had entered into a customary marriage with him before his death. Mayelane, however, did not know about this second marriage and argued that, under Xitsonga custom, a husband cannot validly enter into another customary marriage without the consent of his first wife. She approached the North Gauteng High Court in Pretoria, seeking an order declaring the second marriage invalid. The High Court ruled in Ngwenyama’s favour, holding that the first wife’s consent was not a prerequisite under Xitsonga custom. The Supreme Court of Appeal upheld this decision.1 Both of these courts relied on section 7(6) of the Customary Marriage Act 120 of 1998 (RCMA), which governs the aspect of polygamous marriage.2 They found that this section did not mention the first wife`s consent as a requirement to validate her husband`s subsequent marriage. Mayelane appealed to the Constitutional Court.
Issues Raised
- “Should the consent issue have been determined by the Supreme Court of Appeal?
- Is the consent of a first wife necessary for the validity of her husband’s subsequent customary marriage? This entails considering- (i) whether the Recognition Act directly prescribes the first wife’s consent as a requirement for validity; and (ii) whether living Xitsonga custom makes such a prescription.
- If neither the express provisions of the Recognition Act nor Xitsonga customary law creates this requirement, does the Constitution require the law to be developed?”3
Arguments of the Parties
Ms. Mayelane, the appellant, claimed to be Mr. Moyana’s lawful first wife under Xitsonga customary law. She argued that her husband couldn’t validly enter a second polygynous marriage without her consent, which she hadn’t given. Therefore, she contended the second marriage to Ms. Ngwenyama was invalid, citing section 3 RCMA that outlines requirements for valid customary marriages, providing that;
(1) “For a customary marriage entered into after the commencement of this Act to be valid
(a) the prospective spouses-
(i) must both be above the age of 18 years; and
(ii) must both consent to be married to each other under customary law;
(b) The marriage must be negotiated and entered into or celebrated in accordance with customary law.”4
She argued that the subsequent marriage did not comply with section 3(1)(b) because this section acknowledges the same customary law which prescribes the first wife`s consent to validate subsequent marriage. And that undermining the first wife`s consent is violating section 6 of the RCMA, which grants the spouses an equal status and capacity, as well as her constitutional rights to equality5and dignity.6
On the other hand, Ms. Ngwenyama, the respondent, maintained that her marriage to the deceased was valid and that there was no definitive proof that Xitsonga customary law required the first wife’s consent for a polygynous marriage.7 She contended that the validity of her marriage must be determined by statutory law rather than uncertain customary practices. In particular, she argued that section 7(6) of the RCMA8governed the regulation of polygynous marriages, and since this section makes no mention of the requirement of a first wife’s consent, such consent could not be read into the Act. According to her, section 7(6) only regulates the proprietary consequences of customary marriages and does not affect their validity. She therefore relied on the decisions of the North Gauteng High Court and the Supreme Court of Appeal, both of which ruled that the first wife’s consent was unnecessary, and that her marriage to the deceased remained valid.9
Judgment / Final Decision10
- The Constitutional Court granted leave to appeal and took the opportunity to clarify the requirements for polygynous marriages under Xitsonga customary law.
- The Court stressed that customary law must be interpreted and applied in a manner consistent with constitutional values, particularly the rights to equality and human dignity.
- The appeal was accordingly upheld, and the order of the Supreme Court of Appeal was set aside and replaced with a declaration that the customary marriage between Hlengani Dyson Moyana and the first respondent, Mphephu Maria Ngwenyama, was null and void.
- The Court also clarified the interpretation of the RCMA, emphasising that section 7(6) regulates the proprietary consequences of polygynous marriages rather than their validity, while validity is determined under section 3.
- To reach this outcome, the Court developed Xitsonga customary law by affirming that the first wife’s consent is required for the validity of a subsequent customary marriage.
- Importantly, the Court further emphasised that this requirement would apply prospectively, ensuring that only future polygynous marriages under Xitsonga law are directly affected by this development.
Legal Reasoning / Ratio Decidendi
The majority of the bench delivered the main judgment, comprising Froneman J, Khampepe J, and Skweyiya J.
The court has been driven by section 39(2) of the Constitution, which binds the interpretation of the legislation, common law, and customary law to be done in a manner that promotes the rights in the Bill of Rights. Section 6 of the RCMA is found to be essential to maintain equality between spouses in customary marriages. The majority also reasoned that by requiring the first wife’s consent, the court would protect the first wife’s rights, ensuring they have a say in decisions directly affecting their marital and personal life.11
Evidence presented before the Court, including testimony from members of the community, advisors, and traditional leaders12It is indicated that in Xitsonga custom, the consent of the first wife is required to validate a polygynous marriage. The court aligned with section 211 of the Constitution by calling traditional leaders to testify.13
The decision to make an order apply prospectively only to Xitsonga marriage law aligns with Shilubana v Nwamitwa, wherein the court stated that the practice of a particular community is relevant in determining the content of a customary law norm.14 It also relied on Gumede v President of the Republic of South Africa, where it had previously acknowledged the historical disadvantages suffered by women under customary law and emphasised the importance of interpreting the RCMA in line with the constitutional rights to equality and dignity.15 The court also cited Frase v Children’s Court,16 where it has been stated that:
“There can be no doubt that the guarantee of equality lies at the very heart of the Constitution. It permeates and defines the very ethos upon which the Constitution is premised. In the very first paragraph of the preamble, it is declared that there is a ‘. need to create a new order in which there is equality between men and women and people of all races so that all citizens shall be able to enjoy and exercise their fundamental rights and freedoms.”
A multicultural society in South Africa uses pluralism customary law.17 Jafta J acknowledged that such a requirement might not exist in other customary law systems and applying it retroactively could disrupt and unfairly undermine the validity of existing marriages contracted in those traditions, hence the judgment is only applicable to the Xitsonga customary marriages and not develop the entire customary marriages in South Africa.18 He submitted an obiter dictum that:
“Xitsonga customary law, as developed in the main judgment, appears not in line with the Constitution. To require the consent of the first wife only is not consistent with the equality clause. And if the rule is to be developed to require consent of all existing wives, there may be difficulties arising out of its application. Take for example the case of a man with 13 wives who wishes to marry another wife. If he marries with consent of 12 wives only because one of them did not consent, can it be said that the marriage is invalid? Would the lack of consent by one wife vitiate a marriage concluded with the consent of 12 other wives?”19
Zondo J seconded him, expressing obiter dictum that: “I adopt in deciding this matter, like Jafta J, I am of the opinion that the development of Xitsonga customary law is not necessary to reach the conclusion that, in so far as the first respondent may have had a marriage with the deceased, such marriage was invalid.”20
Conclusion / Observations
The requirement that the first wife give her consent sets an important precedent in Xitsonga customary marriage law, as it promotes women’s dignity and ensures their active participation in decisions affecting their lives. In Ramuhovhi v President of the RSA, the Constitutional Court referred to Mayelane to highlight that section 7 of the RCMA reinforces inequality between men and women and perpetuates a patriarchal system.21 More recently, in B.S v P.M., the court confirmed that, to establish a valid subsequent customary marriage under Tsonga customary law, it is necessary to demonstrate that the existing wife has consented to the marriage.22
This precedent is also in accordance with South Africa’s international obligations to abolish discriminatory practices against women. Notably, adjudication of customary law disputes can often be delayed by the need to call witnesses to establish the existence or non-existence of customs. Nevertheless, this decision marks a transformation from past violations of women’s rights towards building a democratic state founded on human dignity and achieving substantive equality.
BIBLIOGRAPHY
Books
Thandabantu N and Chuma H (eds), African Customary Law in South Africa: Post-Apartheid and Living Law Perspectives (First published 2014, Oxford University Press Southern Africa 2014)
Statutes
Constitution of the Republic of South Africa, 1996
Customary Marriage Act 120 of 1998
Cases
B.S v P. M [2024] ZAGPJHC 508
Fraser v Children’s Court, Pretoria North [1997] ZACC 1
Gumede v President of the Republic of South Africa [2008] ZACC 23
Mayelane v Ngwenyama CCT 57/12 [2013] ZACC 14
Ramuhovhi v President of the Republic of South Africa [2017] ZACC 41 Shilubana and Others v Nwamitwa [2008] ZACC 9
1 Mayelane v Ngwenyama CCT 57/12 [2013] ZACC 14 [4]
2 Mayelane v Ngwenyama CCT 57/12 [2013] ZACC 14 [5]
3 Mayelane v Ngwenyama CCT 57/12 [2013] ZACC 14 [12]
4 Customary Marriage Act 120 of 1998, s 3(1)
5 Constitution of the Republic of South Africa, 1996, s 9
6 Constitution of the Republic of South Africa, 1996, s 10
7 Mayelane v Ngwenyama CCT 57/12 [2013] ZACC 14 [11]
8 Customary Marriage Act 120 of 1998, s 7(6)
9 Mayelane v Ngwenyama CCT 57/12 [2013] ZACC 14 [5]
10 Mayelane v Ngwenyama CCT 57/12 [2013] ZACC 14 [89]
11 Mayelane v Ngwenyama CCT 57/12 [2013] ZACC 14 [73]
12 Mayelane v Ngwenyama CCT 57/12 [2013] ZACC 14 [60]
13 Constitution of the Republic of South Africa, 1996, s 211
14 Shilubana and Others v Nwamitwa [2008] ZACC 9 [45]
15 Gumede v President of the Republic of South Africa [2008] ZACC 23 [21]
16 Mayelane v Ngwenyama CCT 57/12 [2013] ZACC 14 [65]. Fraser v Children’s Court, Pretoria North [1997] ZACC 1 [20]
17 Thandabantu Nhlapo and Chuma Himonga (eds), African Customary Law in South Africa: Post Apartheid and Living Law Perspectives (First published 2014, Oxford University Press Southern Africa 2014) 38
18 Mayelane v Ngwenyama CCT 57/12 [2013] ZACC 14 [142]
19 Mayelane v Ngwenyama CCT 57/12 [2013] ZACC 14 [144]
20 Mayelane v Ngwenyama CCT 57/12 [2013] ZACC 14 [130]
21 Ramuhovhi v President of the Republic of South Africa [2017] ZACC 41 [35]
22 B.S v P. M [2024] ZAGPJHC 508 para [53]
